SOMBA K'E/YELLOWKNIFE
A new trial date has been set in the case of Yellowknifer reporter John McFadden, after two previous judges found they had received insufficient information about some elements of the defence's case.

McFadden was arrested in July for allegedly obstructing a peace officer while taking photographs of an RCMP search of a van in downtown Yellowknife. McFadden's trial was originally scheduled for Oct. 28 and was to include allegations - as yet unnamed in court - that the reporter's charter rights had been violated.

However, before the trial could begin the sitting judge, Justice Robert Gorin, stated that insufficient notice of the charter argument had been provided to the court. He stated that no factual summary had been filed and that the onus is on the defence to establish a charter breach.

Defence attorney Jay Bran said these were "quite common breaches" of people's rights and said the court would not be unfamiliar the arguments. Still, Gorin elected to adjourn court for one week so the defence could "provide proper notice of charter arguments."

The following week, the defendant returned to court, his lawyer having filed an amended notice of application for the charter challenge, this time before Justice R.J. McIntosh, a visiting judge from Alberta. McIntosh said he would not hear the case because this new information before the court did not include examples of previous charter breaches similar to those alleged by the defence.

"If I was sitting on a charter file, I would want cases to see in advance," he said.

In an e-mail to Yellowknifer, Bran noted that McIntosh was referring to "how things are done in his home jurisdiction" and that practice is different in the NWT. He said prior to the Oct. 28 trial he had filed a notice of application with the court the same way he has with other similar cases before.

"I was surprised and curious as the local practice is somewhat divergent on the point," he said. "My own practice, in the past, has been not to file particulars and to rely on the evidence in the hearing. In the past I've had discussion with the Crown and we are aware of the particulars and understand what the issues will be in the hearing."

According to Caroline Wawzonek, president of the NWT chapter of the Canadian Bar Association, when it comes to making charter applications in this jurisdiction "there is no set timeline/requirement for providing notice or supporting materials and no clear standard practice."

Her e-mail stated there is a general expectation that lawyers will submit materials (evidence or case law) in a "reasonable" amount of time – usually two weeks in advance – but that sometimes changing circumstances can make that impossible.

"And sometimes an issue is really so obvious that no one should be surprised by it even if it does come up somewhat last minute," she said.

"Some criminal courts in Canada have practice directives requiring counsel to provide notice on set timelines. But the penalty for not doing so is usually an adjournment and perhaps some harsh words from the court where the reasons for failing to provide notice are lacking."

Defense lawyer Peter Harte, who is not associated with McFadden's case, said when submitting a notice of application, he tries to reference case law.

"This is a matter of style but I use the notice of application to advance my case, so that I've already got a written argument before the court," he said.

Bruce Valpy, managing editor at Northern News Services, declined to comment on the case.

"As RCMP actions regarding Yellowknifer and its reporter are before the courts, we will be withholding comment until there is a ruling," he said.

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